January 10, 2010

Camera Issue Hurriedly Raised Before Supreme Court

On the eve of the crucial trial in San Francisco over the Proposition 8 ban on same-sex marriage in California, there's been a lot of debate over whether now is the time to set the issue on a course that will end up at the Supreme Court. (See this article in the latest New Yorker.)

Over the weekend, without much hand-wringing in advance, another touchy issue has swiftly gone before the Supreme Court in the context of the California case: whether cameras belong in federal courts. For proponents of camera access, it might be getting to the Supreme Court before it is ready to tackle it, just as with the marriage issue, but there it is: it was placed before the Supreme Court by opponents of camera access, namely the proponents of Proposition 8.

Charles Cooper of D.C.'s Cooper and Kirk filed an application with Justice Anthony Kennedy, who handles emergency matters from the 9th Circuit, seeking to halt the trial judge's plan to tape the Prop 8 trial and allow it to be broadcast on YouTube on a delayed basis. The hastily arrived-at plan by Judge Vaughn Walker would cause "irreparable harm" to the fair trial rights of the supporters of Prop 8, Cooper asserted. The YouTube broadcast could create a "media circus," Cooper said, and would, based on past experience, subject opponents of gay marriage to "harassment, economic reprisal, threats, and even physical violence."

Cooper made a broader attack on cameras in the courts, noting the Judicial Conference's longstanding policy against cameras, especially in trials, both criminal and, like this one, civil. He cited statements by judges about intimidation of witnesses and the distraction to attorneys and judges themselves.

Today, the opponents of Prop 8, who favor camera access, responded to Cooper's brief, aided by a separate brief from a media coalition that favors the plan. As it happens, the main lawyer for the opponents of Prop 8, Gibson, Dunn & Crutcher partner and fomer Solicitor General Theodore Olson, has as his co-chair of the appellate practice Theodore Boutrous Jr., one of the most prominent media lawyers in the nation. Boutrous was on the brief with Olson, arguing that the Prop 8 trial is a "sound candidate" for the 9th Circuit's pilot program allowing camera access to some district court proceedings. The Olson-Boutrous brief cites "overwhelming public interest" in the trial, and asserts that allowing broadcast coverage is a proper way of "fostering public confidence in the outcome." The concerns voiced by Cooper, the brief stated, are "utterly unsubstantiated and groundless speculation."

The media coalition's brief was authored by Thomas Burke of Davis Wright Tremaine in San Francisco, and it too argues against the merits of a stay of the YouTube plan. "If camera access is ever appropriate -- and it is -- it is the high profile case, like this one, in which it is most important," Burke wrote. "The First Amendment mandates that the public be allowed to observe, so that it can understand, what occurs in the courtroom."

Kennedy, who could rule sometime this afternoon, is no friend of cameras in the federal courts, or at least the Supreme Court. As seen in the quotes compiled by C-SPAN here, Kennedy has voiced strong concerns over the years that cameras would be an "insidious dynamic" that would alter the behavior of participants in court proceedings. He also has said that by refusing to allow cameras, and going against the trend of other institutions, the courts teach a valuable lesson, namely that courts are different. But Kennedy may also be persuaded that courts, especially his own 9th Circuit, should be trusted and allowed to experiment. The best that access advocates may be able to hope is that however Kennedy rules, he does not slam the door to cameras completely shut.